For years, employees with common interests or characteristics have been banding together in lunch or after-work groups—typically with their employers’ blessing and support.

These so-called affinity or support groups are a natural extension of workplace diversity and inclusion efforts, and it’s estimated that nearly 90% of Fortune 500 companies have them.

Their aim is, innocently enough, to facilitate networking and common interest among employee groups. Now, however, more employers are realizing the potential risks of supporting these groups:
Interference with labor organizations. Under the National Labor Relations Act (NLRA), some employment attorneys warn that employers encouraging or sponsoring affinity groups might be seen as illegally “dominating” or “interfering” with a labor organization. That doesn’t automatically mean a union.

The NLRA broadly defines a “labor organization” to include virtually any type of group that “deals with” the employer concerning wages, hours and working conditions. This also applies to both union and nonunion employers.

Potential employment discrimination. Anti-discrimination laws forbid bias based on race, color, religion, sex or national origin. Because some groups are organized around such protected classifications, there’s a risk that company decisions could be discriminatory.

For example, Mellon Bank recently faced a legal fight after an employee was disciplined for his loud objections to the company’s gay and lesbian affinity group. (Shwartzberg v. Mellon Bank)

Keeping affinity groups on the right side of the law

1. Formalize it. It’s best to devise a written policy that requires employees to “apply” for affinity-group status and outlines company policies and protections.
2. Dodge NLRA troubles. State clearly that affinity groups do not “deal with” the employer with respect to the terms and conditions of employment.
3. Avoid gripe-session potential. While employees have the legal right under the NLRA to come together to discuss their wages and working conditions, there’s reason for concern if affinity-group meetings turn into company bash sessions. Make clear in your guidelines that complaints are to be brought forward through normal company channels.

4. Be consistent. The buck can stop with you, the employer, when it comes to approving or nixing a particular group—as long as your policy is consistent. Case in point: A General Motors employee sued after the company denied his application to start a Christian group. The court sided with GM because it treated all religious affinity groups the same—by banning them. (Moranski v. General Motors Corp.)
5. Decide on the scope of support—and ensure equality. If you plan to allow employee groups to use company meeting space or equipment, spell out your commitment and its limits. Give access to the same resources for every group.

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